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Constitutional and Administrative Law

11 Grounds

PART XI GROUNDS OF REVIEW


I

Procedural Fairness
A

Introduction

The nature of a ground of review

Grounds of review are, broadly speaking, criteria for determining whether a decision was made
unlawfully. If a ground of review is available, the effect is that the decision is justiciable. If a
ground of review is successfully pleaded, a remedy may be available and the decision will
normally be declared unlawful.
At a statutory level, the recognised grounds of review are largely formalisations of the common
law bases on which the lawfulness of a decision could traditionally be tested. As set out by the
Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR), they go towards determining
whether the decision-maker went beyond their lawful authority. More than one ground may be
applicable to a given case.

Breach of the rules of natural justice

Section 5(1)(a) of the ADJR sets out the various grounds of review. Among them is breach of
the rules of natural justice:

Section 5 Applications for review of decisions:


(1)

A person who is aggrieved by a decision to which this Act applies may apply for
an order of review on the following grounds:
(a)

that a breach of the rules of natural justice occurred in connection with the
making of the decision;

Section 6(1)(a) provides for an identical basis for reviewing conduct preceding a decision:

Section 6 Applications for review of conduct related to making of


decisions:
(1)

Where a person has engaged, is engaging, or proposes to engage, in conduct for the
purpose of making a decision to which this Act applies, a person who is aggrieved by
the conduct may apply for an order of review in respect of the conduct on any one or
more of the following grounds:
(a)

that a breach of the rules of natural justice has occurred, is occurring, or is likely
to occur, in connection with the conduct;

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In formalising this common law ground of review, the ADJR recognises that, where it applies to a
decision, it may be used as a basis for challenging that decision. However, the ground does not
alter the situations in which natural justice or procedural fairness will apply; this remains
determined by the common law (Kioa v West).
The rationale for the common law position may be summarised thusly:
They must be masters of their own procedure. They should be subject to no rules save
this: they must be fair The public interest demands it.1
In its original form, natural justice only had to be accorded by courts and judicial bodies. The
rules of natural justice have gradually developed to encompass other decision-makers.
The phrase natural justice is traditionally used to describe the rules of procedure which such a
decision-maker must observe in order to achieve fairness. In recent times, however, that phrase
has fallen from popular usage in favour of the term procedural fairness:
the expression procedural fairness more aptly conveys the notion of a flexible obligation
to adopt fair procedures which are appropriate and adapted to the circumstances of a
particular case. The statutory power must be exercised fairly, that is, in accordance with
procedures that are fair to the individual ... and the interests and purposes which the
statute seeks to advance or protect
Kioa v West (Mason J).

B
1

Breach of Natural Justice

What is natural justice?

Natural justice proceeds out of the belief that logical reasoning is most conducive to just results.
Deriving from Roman law, the term posits that certain principles are so obvious as to be required
by nature so that they should be applied universally.

Common issues

Two issues arise frequently in relation to this ground of review:


1

Is there an obligation to accord natural justice?


Such an obligation exists where the decision would affect an individuals rights,
interests or legitimate expectations, subject to contrary statutory intention: Kioa

If the obligation applies, what does it require?


Contextual factors shape its precise content (Kioa) but it will normally encompass
at least the following two doctrines:
(a) Audi alteram partem
The hearing rule: the right to a fair hearing; and
(b) Nemo judex
The bias rule: no-one can be a judge in their own cause.

Re Pergamon Press Ltd (1971) HL (Lord Denning MR).

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Implication

Not all decisions will be judicially reviewable on the basis of procedural fairness. Whether a right
to procedural fairness exists necessitates answering the question: Is there a duty to hear the
applicants case?
The policy issue which arises at this stage is: To what extent should adversarial procedural
criteria be applied to administrative decision-makers? Fairness to the parties must be balanced
against the efficiency of administration.
The scope of the common law duty to accord procedural fairness was conclusively determined by
the High Court in Kioa v West (1985) 159 CLR 550, 584 (Mason J):
It is a fundamental rule of the common law doctrine of natural justice that, generally
speaking, when an order is to be made which will deprive a person of some right or
interest or the legitimate expectation of a benefit, he is entitled to know the case sought
to be made against him and to be given an opportunity of replying to it
The reference to right or interest in this formulation must be understood as relating to
personal liberty, status, preservation of livelihood and reputation, as well as to proprietary
rights and interests
Justice Deane agreed, noting that in the absence of contrary legislative intention, a decisionmaker entrusted with a statutory power to make an administrative decision which directly affects
the rights, interests, status or legitimate expectations of another in his individual capacity is
bound to observe the requirements of natural justice or procedural fairness.
However, it is useful to understand the history and development of this ground of review through
its various incarnations.

Cooper v Wansworth Board of Works (1863):


Facts

Issue

Cooper builds a house, but failed to give notice to the Board of Works
In the dead of night, the Board of Works demolishes the house
Cooper brings an action for common law trespass, arguing that in failing to give him
notice of the intended demolition, and an opportunity to explain and respond the
Boards conduct was in breach of the principles of natural justice
The statute did not require notice be given to the owner of a house subject to demolition

Was the decision lawful (and hence conferred a right to enter Coopers property)?

Reasoning
Court of common pleas: where the statute fails to provide, the common law will remedy
the situation
The common law impliedly recognises natural justice, imposing an obligation on the
Board to afford procedural fairness to a person whose interests are affected
Decision
No, decision not lawful; the trespass claim is upheld and the plaintiff is successful

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Ridge v Baldwin:
Facts

An employee, previously dismissed, seeks review


No reasons for dismissal were provided to the employee

Reasoning
The Court adopts an expanded notion of procedural fairness
Decision
However, the employees rights are governed by contract not statute, so this is not an
administrative decision
The challenge is unsuccessful

Salemi v McKellar (1977) HCA:


Facts

Issue

An Italian immigrant unlawfully lives in Australia (his visa had expired)


The government announces an amnesty for unlawful immigrants (conditional on meeting
certain criteria)
Salemi comes forward, but the government then tries to deport him
He challenges that decision on the grounds that he wasnt given proper notice of the
reasons for deportation, and that the amnesty created a legitimate expectation
The ADJR Act was not yet in effect

Is there an obligation to afford procedural fairness?

Decision
No, there is no obligation to accord natural justice beyond the statute [???]

Kioa v West (1985) HCA:


Facts

Issue

Mr Kioa travels to Australia on a temporary visa


He applies for an extension to his visa so he can return with his wife in March of the
following year
Come March, neither of them leave; they move address and lose contact with the
Department
Some two years later, Mr Kioa is found and the Department now seeks to deport him
Kioa challenges their decision to deport on the basis that he was not given an opportunity
to respond to claims made against him
These claims included an allegation that he was involved in supporting illegal immigrants
circumvent the immigration system

Is Mr Kioa entitled to procedural fairness?

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If so, what does this entail in the circumstances?

Reasoning
Mason J:
o Distinguishes Salemi: ADJR Act had not yet come into effect
o The common law presumption of entitlement to natural justice (procedural
fairness) applies unless there is a clear contrary indication in the statute
Specifically, it applies where rights, interests or legitimate expectations
are prone to be affected by the decision
It is a fundamental rule of the common law doctrine of natural justice
expressed in traditional terms that, generally speaking, when an order is
to be made which will deprive a person of some right or interest or the
legitimate expectation of a benefit, he is entitled to know the case sought
to be made against him and to be given an opportunity of replying to it
The reference to right or interest in this formulation must be
understood as relating to personal liberty, status, preservation of
livelihood and reputation, as well as to proprietary rights and interests
Essentially, the recognised class of rights and interests is expanded: it
now includes legitimate expectations as well as proprietary and personal
liberty rights
These interests go beyond legal rights
Legitimate expectation
Applies even where the order will not deprive an individual of a
legal right or interest
Eg, licence renewal application: expectation is that licence will
continue to be granted: gives
Eg, past conduct or practice of a Department
Eg, where, as in Salemi (offering amnesty), Departmental
conduct gives rise to an expectation by affected persons (that
those coming forward would receive a visa)
Where the expectation is denied (or the interest affected), the affected
party should be given notice and an opportunity to respond

Brennan J: probably most reflective of current HCAs approach


o Starting point: statutory intention: so long as the decision is consistent with the
statutory context, there will be a presumption of procedural fairness, but only
where the presumption of statutory power is apt to affect the interests of an
individual in a manner with a substantially different affect on interests of the
public
o The concept of legitimate expectation is not especially helpful
o Interests: old conception is too narrow could be any individual interest, so long
as it differs from (ie, particular to the individual and not) the general public
This is not limited to financial, proprietary or reputation rights

Wilson J: agrees, but describes the applicants victory as narrow and technical

Gibbs CJ (dissenting):
o Salemi v McKella should have been applied
o The Migration Act already affords sufficient fairness in the procedures it imposes

Decision
Applicant deported

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Note criticism of the notion of legitimate expectations by McHugh J in Ex Parte Lam (2003) HCA.
The concept of a legitimate expectation is indeed elusive. However, the following at least may be
said about it; a legitimate expectation is likely to arise when:

The decision-maker gives an undertaking or assurance that the applicant would be


consulted before making a decision: Liverpool;
The decision-maker normally acts in a certain way (eg, giving notice and inviting
submissions): Kioa v West; Cooper;
A policy or treaty exists which gives rise to an expectation that it will be followed or taken
into account: Teoh; or
The applicant has a right as licensee (expecting renewal), prospective licensee
(expecting due consideration of an application) or has had their right renewed in the past
or been provided with some indication about their likely chances of success (expecting
prior conduct to continue in the absence of other supervening circumstances): McInnes v
Onslow-Fane.

Kioa v West confirms that a legitimate expectation is not a substantive right in itself. Rather, it
simply gives rise to a right to be heard (for procedural fairness to be accorded) before a decision
is made or action taken: Salemi v MacKellar [No 2]. However, it does not require a decisionmaker to act or decide in a certain way just that they accord procedural fairness: Minister of
Immigration and Ethnic Affairs v Teoh.

Exclusion

Even if procedural fairness would be ordinarily applicable, it may be denied (excluded) by


statutory provision (Medway v Minister for Planning). For example, many procedures in the
Migration Act are said to be exempt from procedural fairness. Statutes often exclude procedural
fairness because they already provide for review using other procedures, themselves ensuring
fairness.
In general, no right to procedural fairness will exist in circumstances where:

There is clear statutory language to the contrary;


o Mason Js exception: if the legislative intention is to provide procedural fairness
within the statute, then this may indicate that no additional procedural fairness
need be imposed by courts
o This will normally occur if the legislation describes a power as able to be
exercised without a hearing being afforded to the affected party (Twist v
Randwick Municipal Council)
o However, this intention must be unambiguously clear (Twist per Barwick CJ)
and cannot be assumed by inference or equivocal words (Commissioner of
Police v Tanos)

The decision is political in nature; or


o This includes policy and other broad aims, as well as decisions affecting the
public at large
o If the decision concerns matters of national security, the right to be heard may be
overcome by those considerations: Council of Civil Service Unions v Minister for
the Civil Service

(Possibly) the decision is made by a political figure


o For example, the GovernorGeneral, Cabinet, Prime Minister, etc

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Content of Duty

Issue: what features must a hearing possess to satisfy the requirement of procedural fairness, if
one is found to exist?
There are two elements of the hearing rule:
1
2

The applicants right to know the case against them; and


The applicants right to present their own case.

Determining the content of procedural fairness requires courts to balance two competing values:
fairness to the individual and institutional efficiency. These are not entirely inconsistent, but do
exhibit occasional tension.
Hearings may be characterised along a continuum of adversarialism by reference to the features
shared with a civil trial:
(a)

Notice of charges
The applicant has a right to know the case against them;

(b)

Evidence (discovery)
Disclosure of evidence adverse to the applicants claim;

(c)

Legal representation
Mounting a defence with the aid of an expert and complying with oral or
written procedures;

(d)

Hearing
The representative making submissions in the required format;

(e)

Cross examination
Whether the applicant can question witnesses brought by the opposing
party; and

(f)

Adjudication
Authoritative determination of the dispute.

According to Gibbs CJ in Kioa, this is the irreducible minimum of the duty to accord procedural
fairness. Beyond this, what is required will depend on the nature and circumstances of the case
and the interests the affected party has in the decision.
The requirements of a fair hearing vary between a judicial trial before a jury (for a criminal
proceeding), down to written notice of a
Factors influencing the content of the duty to accord procedural fairness include:

The nature of the decision-making process


o If it has multiple stages, procedural fairness will be satisfied if the process, when
viewed as a whole, may be so characterised: South Australia v OShea
o However, a right to be heard later cannot cure a deficiency in procedure at an
earlier stage, unless the steps and persons involved in decision all form part of
one process: Ainsworth v Criminal Justice Commission

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Whether the stage of decision-making under consideration is a preliminary or


later stage: Rees v Crane

The legislation authorising the decision


o A right to be heard later will not necessarily mean that a right to be heard at an
earlier stage is excluded, but this may (though will not necessarily) be the case if
the initial investigation is purely preliminary (as where no consequences flow
from it): Rees v Crane, where the Privy Council said:
If an investigation is purely preliminary, such that complaints can be dealt
with later, then procedural fairness need not be accorded
The exclusion of the audi alteram partem maxim is justified by urgency
or administrative necessity and the fact that no penalty or serious
damage to reputation is inflicted by proceeding to the next stage without
such preliminary notice
o A hearing at an early stage may defeat the legislative intent or be contrary to the
public interest (eg, privacy or secrecy implications)

The circumstances and subject matter of the case

Notice of charges

The giving of notice is the minimum content of procedural fairness (Kioa v West; R v North; Ex
parte Oakey). That is, a hearing cannot be fear if an applicant is not made aware of the case
against him.
The notice must not be overly vague and must be complete and comprehensible (Re Palmer and
Minister for the Capital Territory). This means that the recipient must be made aware of the
relevant issues of fact, including the basis on which the proposed decision is to be made.
In Kioa v West, Mason and Brennan JJ each noted that the applicant should have received notice
of the allegations (that he had colluded to subvert the immigration system) and been given an
opportunity to respond to those allegations.

Bond v Australian Broadcasting Tribunal (???) HCA:


Facts

Issue

Bond wanted further particulars of the case against him, and the order of witnesses
appearing so he could call his own witnesses in an appropriate order
The Tribunal is exercising its powers under the Act to determine whether Bond is a fit
and proper person to hold a broadcasting licence

What must be done to satisfy Bonds right to procedural fairness?

Reasoning
Not an adversarial trial
Decision
Bond not entitled to any further procedural fairness: he did receive a notice and some
particulars; that is sufficient

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It is often said that an individual must be given a chance to respond to any adverse comments:
Kioa v West; In re Pergamon Press Ltd. This will often entail being given the ability to rebut or
respond to any prejudicial statement (Board of Education v Rice).

The right to evidence

Minister for Immigration v Kurtovic (???):


Facts

Issue

K is deported
K seeks access to parole officers reports which she thinks may have influenced the
decision

Can K have access to the reports?

Reasoning
Pragmatic approach adopted (no strict rule)
Decision
No, couldnt respond to it
Contains confidential information about officer, etc; could perhaps disclose subject to
confidentiality obligationsto Ks lawyer

Administrative practices may also give rise to an entitlement to procedural fairness.

Hamilton v MILGEA (???):


Facts

Issue

Departments practice is to supply explanatory notes to assist with filling out application
forms
Hamilton is not provided with the explanatory notes
She is subsequently refused her permanent residency application
She applies for review on the grounds that she was denied procedural fairness

Was there a breach of natural justice?

Reasoning
Hamilton is entitled to the notes
Established practice of providing explanatory notes gave rise to a legitimate expectation
that they would be provided
o Where a department intends to depart from an established practice, it will often
be a legitimate expectation that the applicant will be heard on that issue or
notified of the departure
Consistency of treatment is important to procedural fairness

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Decision
This constituted a denial of procedural fairness
However, Hamilton hadnt complied with other regulations, and those errors were not
impacted upon by the failure to provide notes, so the decision is not void

The right to legal representation

There is no general right to legal representation, unless the accused is charged with a serious
criminal offence. In such cases, proceedings must be stayed until representation can be
obtained: Dietrich v R. If not, there is likely to be a miscarriage of justice.
However, even in some civil or lesser criminal cases, procedural fairness may not be satisfied if
the applicant or accused does not have legal representation (McNab). Whether this is so
depends upon:

The relevant legislation, including the legislative intention, properly construed; and
Whether there is a hearing, and whether it involves complex questions of law (White v
Ryde Municipal Council).

Also relevant is the identity of the party seeking representation. Legal representation will not
normally be granted to a party other than the actual accused (NSW v Canellis). This is especially
so when no proceedings have yet been instigated against the third party.

NSW v Canellis (1994):


Facts

Issue

A convict has been provided with legal aid to fund his defence to homicide charges
Witnesses called in his defence argue that as a matter of procedural fairness, they
should also be entitled to legal representation

Does procedural fairness require that the witnesses be given legal representation?

Reasoning
No general requirement to provide legal representation
However, there might be circumstances where it might be a requirement of procedural
fairness that representation be provided
Factors:
o Identity of the parties requesting representation (here not the accused)
o Stage of the proceedings (before conclusions have been formed about them)
Decision
It would be premature to grant representation here
It is not yet known whether the Commission enquiry is going to form adverse conclusions
about the witnesses

The necessity of legal representation further depends upon a persons capacity to represent
themselves effectively (Krstic; Cains v Jenkins); this includes consideration of
The extent to which the applicant is familiar with the relevant legal and procedural rules

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The applicants linguistic fluency


Whether the applicant suffers from a physical or mental disability
The seriousness of the decision to be made
The applicants age, health and confidence

No legal representation will be required where the applicant is able to effectively represent herself
and the decision-maker does not adopt formal rules of procedure (Krstic v ATC).

Krstic v ATC (1988):


Facts

Issue

The probationary employment of Ms Krstic, a public servant, was terminated


She seeks review of the decision on the grounds that she was entitled to but did not
receive representation at the hearing

Was Ms Krstic, as a matter of procedural fairness, entitled to legal representation before


the tribunal?
Even if not so entitled, was she entitled to be represented by another person of her
choosing?

Reasoning
Legal representation
o The tribunal was not to perform proceedings like a court
o Not bound by rules of evidence
Able to conduct proceedings as it saw fit
o Because of its constitution and provisions governing proceedings, procedural
fairness does not require Krstic to be represented by a lawyer
Other representation
o Whether procedural fairness requires some form of representation depends on
the attributes of the person
o Can the individual effectively represent him or herself?
Age
Confidence
Fluency of language
Illness
o Here, Ms Krstic was able to effectively represent herself
Decision
Not entitled to legal or other representation

The right to a hearing

There is no general right to make submissions (Chen). However, where it does arise, the
decision-maker must act in good faith and listen fairly (Board of Education v Rice).

Chen v Minister of Immigration, Ethnic and Cultural Affairs (200x) Court:


Reasoning

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No general obligation on decision-makers obliged to provide procedural fairness to allow


an oral hearing
Justifications:
o Resource limitations
Not desirable to impose judicial standards of enquiry upon administrative
decision-makers
o Government departments are not like courts
o Imposing a blanket rule might be counter-productive
o Less experienced officers may deal with the applications: more hearings dilutes
quality of administrative decision-making
Exceptions:
o When determining the credibility of the applicant: entitled to make oral
submissions
o French J: [???]

Decision
[???]

The right to cross-examine

ORourke v Miller (1985) Court:


Facts

Issue

A police officer is alleged to have harassed two women and used his badge to gain entry
to private premises
The women make complaints against him
The Chief Commissioner initiates proceedings to decide whether to terminate the
constables probationary employment
The constable was aware of the case against him, including the contents of the
complaints
He was also given the opportunity to respond to the allegations
He argued that he should also have been able to cross-examine the women who had
made the complaints

Should the constable have been entitled to cross-examine the witnesses?

Reasoning
The nature of the process does not require cross-examination
Police officers are supposed to be upstanding citizens of high integrity
It is sufficient that the Chief Commissioner entertains doubts about the constables
integrity for him to be terminated
o Need not be satisfied beyond reasonable doubt
There was no reason for the women to be fabricating their stories
Decision
No, no right to cross-examine

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Effect of a Failure to Accord Procedural Fairness

If there is a breach of procedural fairness, the decision will be prima facie void (Kioa v West;
Ridge v Baldwin).
However, if the court is satisfied that the breach would not have affected the decision, the
decision will stand. For example, in Hamilton, even if Mrs Hamilton had been given explanatory
notes, the consequences would have been the same. See further Stead.
Note also that although the decision is declared void, a court still has jurisdiction to hear an
appeal against it pursuant to the ADJR, it having been purported to be made (Calvin v Carr).

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II

11 Grounds

Bias
A

Introduction

The rule against bias prohibits actual or reasonably apprehended bias by a decision-maker
charged with the exercise of public power. Actual bias is difficult to assert because a subjective
state of knowledge must be proved. It is also considered improper to accuse a decision-maker of
harbouring bias in so forthright a manner. Consequently, most issues of bias concern the
apprehended or ostensible variety.

Purpose of the rule against bias

For the rule of law to function, neutrality is demanded of decision-makers. Laws must apply
equally to all individuals, regardless of their relation to the adjudicator. Public power affecting the
rights and interests of individuals should be exercised only according to the merits of the case.
Confidence in law and the judicial and tribunal systems could be undermined if decision-makers
were able to exercise power on arbitrary, capricious or even ostensibly biased grounds.
For these reasons, the second rule of natural justice forbids decision-makers, being decisionmakers obliged to afford natural justice, from exercising power in a way that evinces actual or
ostensible bias.

Other justifications

Neutrality, and the public and political confidence which that engenders, are regarded as
essential to the successful and proper operations of the public service, the tribunal system and
the judiciary.2

Instrumental (consequentialist) goals


o Promotes accuracy of fact finding
o Improves the quality of decision-making and policy
o Persons adversely affected are more likely to accept the decision if they entertain
no doubts about the decision-makers objectivity
o Maintain confidence in the administrative process

In Webb v R, for example, the Court described the primary objective of the bias rule as being to
retain public confidence in the administration of justice. This led to the formulation of a test which
defers to the publics reasonable perceptions (see below).

Deontological (non-instrumental) goals


o Treat parties equally
o Afford equal respect and dignity to all subjects
o Acknowledge the publics right to participate in decisions affecting them
o Enhance the institutional legitimacy of government agencies, tribunals and the
judiciary
o Further the broad goal of neutrality and impartiality of law

Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action
(2004) 563.

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The futility of an approach which seeks to eliminate bias might well be questioned on several
reasonably sound philosophical grounds. To what extent can all bias be eliminated? In light of
bias inherent in the minutiae of subjective experience and linguistic interpretation, the answer
must surely be, a finite amount. However, this does not pose a substantial impediment to the
attainment of natural justice. Indeed, to eliminate all such bias would reduce decision-makers to
the impossible position of a computational automaton; it is their personal viewpoint which makes
them capable of complex adjudication, so in addition to being impossible to eliminate all forms of
bias, it would be undesirable even if it was possible. The rule against bias may nevertheless be
criticised as inadequately combating personal racism, ethnocentrism, and gender bias.

B
1

Reasonable Apprehension of Bias

Requirements

The primary issue is whether the circumstances are such as to give rise to a reasonable
apprehension of a lack of impartiality by the decision-maker in the mind of a fair-minded and
informed member of the public.3 This test has the advantage of never actually imputing bias to
the decision-maker (a clear victory in protocol). Where the English test involves a judicial
assessment of reasonable likelihood, the Australian bias test leaves the judges reputation intact,
thus preserving public confidence in the decision-maker concerned.
An authoritative statement of this test was given in Ebner by Gleeson CJ, McHugh, Gummow and
Hayne JJ:
First, it requires the identification of what is said might lead a judge (or juror) to decide a
case other than on its legal and factual merits. The second step is no less important.
There must be an articulation of the logical connection between the matter and the feared
deviation from the course of deciding the case on its merits.

Their Honours go onto describe the test for apprehended bias as follows:
[W]hether a fair-minded lay observer might reasonably apprehend that the judge [tribunal
or decision-maker] might not bring an impartial mind to the resolution of the question the
judge [tribunal or decision-maker] was required to decide

The test thus involves two steps:


1

What could lead to bias?


Identify a possibly corrupting influence

What is the connection between that bias and the decision?


Determine the effect on the decision-maker

Prior to Ebner v Official Trustee, judges were automatically disqualified if they had a direct
pecuniary interest. However, Ebner qualified the existence of a possibly corruption influence with
the requirement that it have some determinable effect upon the decision maker. The case
concerns the financial interest of a justice of the Federal Court, shareholder of a company
affected by the outcome of the case.

Webb v R (1994) 181 CLR 41.

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Ebner v Official Trustee (2000) HCA:


Facts

Issue

Goldberg J is a shareholder in the ANZ Bank as a result of his being a director of his
family trusts board of trustees, which holds between 8 000 and 9 000 shares in the ANZ
Bank
The creditor supporting an application by another trustee in bankruptcy is the ANZ Bank
Goldberg J refuses a request from Ebner, the bankrupt party, to disqualify himself
Goldberg J declares this interest, and subsequently decides in favour of the trustee in
bankruptcy (and the bank)

Has the rule against bias been breached because of a reasonable apprehension of bias?

Reasoning
There is no separate rule of automatic disqualification for cases where a judge holds a
direct pecuniary interest: it would be in some respects too wide, and in other respects too
narrow
The very concept of an interest is vague and uncertain
The bare assertion that a judge (or juror) has an interest in litigation, or an interest in a
party to it, will be of no assistance until the nature of the interests, and the asserted
connection with the possibility of departure from impartial decision making, is articulated.
Only then can the reasonableness of the asserted apprehension of bias be assessed. (at
345 per Gleeson CJ, McHugh, Gummow and Hayne JJ)
All interests, regardless of their character, should be judged according to the same basic
test
o However, the test should take into account the character of the decision-maker
o Its operation is tailored to the circumstances of each case, and flexibly applied
First step:
o Pecuniary interest
Second step
o Will this interest lead Goldberg J to determine the issues otherwise than on their
merits?
o Its unlikely that the decision will, either way, affect ANZs share price, so it is
very unlikely that his pecuniary interest will be affected
o Even if a proceeding is price sensitive, the amount at stake is too small to give
rise to a reasonable apprehension
o There may, however, be circumstances where the value of a pecuniary interest
would be directly affected by a proceeding such as to give rise to a reasonable
apprehension of bias
Decision
No reasonable apprehension of bias because the share price could not possibly be
affected

As Ebner demonstrates, obligations to act impartially are strongest for judges. However, the
expectations of a reasonable member of the public are attenuated in respect of administrative
tribunals. An example of this leniency is provided by Epeabaka:

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Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka


(2001) HCA:
Facts

Issue

A member of the Refugee Review Tribunal maintains a website on which he regularly


makes comments about his colleagues and applicants who appear before him
An applicant alleges that the presence of the website gives rise to a reasonable
apprehension of bias

Is there a reasonable apprehension of bias?

Decision
The website, while regrettable, did not give rise to a reasonable apprehension of bias
The member may have allowed enthusiasm to outrun prudence, but did not breach the
rule against bias

Epeabaka illustrates how judicial standards of bias are diluted when applied to tribunal members.
Departments and ministers may have even fewer obligations (Jia).

Minister for Immigration and Multicultural Affairs; Ex parte Jia (2001) HCA:
Facts

Issue

Jia is convicted of a criminal offence


His visa is cancelled on character grounds
The AAT overrules the immigration departments decision
The responsible minister has the power to deport Jia, and decides to do so
Before making this decision, he makes various pejorative comments about the AAT and
the character requirements in a radio interview; he outlines his own views about how
these requirements should operate
Jia seeks judicial review of the ministers decision

Has the rule against bias been breached by the minister?

Reasoning
Rule is applied more leniently in relation to the Minister
Different standards are applied because (D&J 689)
o the minister is in a different position. The statutory powers in question have
been reposed in a member of the executive government who not only has
general accountability to the electorate and Parliament but in s 502 is made
subject to a specific form of Parliamentary accountability
o the public interest is a matter of political responsibility
o No need to codify political responsibility in separate administrative rule
Decision
Rule against bias has not been breached

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Jia may be explained in terms of a reluctance by the judiciary to prevent members of the
executive from expressing their opinions on certain matters. To require that they remain silent
when asked for their opinion during public debates could undermine their political functions.
These cases demonstrate that a connection between the alleged corrupting influence and the
character of a resulting decision is central to the enquiry into bias. The question to be asked is:
how is this conduct or influence likely to affect the decision-making?

Hot Holdings v Creasy (2002) HCA:


Facts

Issue

Recommendation that company get an exploration licence for mining. Minister signed a
Minute of Advice prepared by departmental officials this was the permission. But one
officer who was involved in preparing the advice owned shares in a company that had an
option to purchase 80% of the licence if HH obtained it. Adult son of another officer
involved in drafting had similar options. Minister knew nothing of this.
Who was accused of bias? On what grounds?
Minister reasonably apprehended of bias bc of the bias of the officials.
What role was played in the decision-making by the two officials who were accused of
bias?
Note that the Minister was the only person who made an official decision. The others
gave him advice.

Is there a reasonable apprehension of bias?

Reasoning
McHugh J:
o Relevant test:
Whether a fair-minded person properly informed as to the nature of the
proceedings or process, might reasonably apprehend that the decisionmaker might not have brought an impartial mind to the decision.
This is determined objectively
o What role does a decision-makers pecuniary interest play?
There is no automatic assumption of bias, even if the Minister or their
adviser has a pecuniary interest
The precise nature of the interest and its relationship to the decision
must be examined
o In what ways does the test for bias apply differently to judges and administrative
decision-makers?
The test is the same
However, the content (ie, the required standard of objectivity) may be
different
A Minister is subject to a lower standard because he or she is already
responsible to their electorate and to Parliament
o Relevant factors
An advisors bias will not normally infect a Ministers decision
None of the key people involved in making the decision had any bias
themselves or knowledge of the bias of the other two
The major participants were independent and disinterested
If advisors had been biased and had influenced minister significantly,
then the outcome might be different
However, they had not such influence here

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What role might personal relationships play in determining bias?


A court will not conclude that there was a reasonable apprehension of
bias merely because a person with an interest in the decision played a
part in advising the decision-maker. The focus must be on the nature
of the advisers interest, the part that person played in the decisionmaking process and the degree of independence observed by the
decision-maker in making the decision. If there is a real and not a
remote possibility that a Minister has not brought an independent
mind to making his or her decision, the role and interest in the outcome
of his or her officers may result in a finding of reasonable apprehension
of bias.
It would do so in the present case, for example, if either Mr Phillips or
Mr Miasi were biased or their circumstances gave rise to an
apprehension of bias and either of them had influenced the Ministers
decision. Thus, the role played by an adviser is a critical factor in
determining whether the interest of an adviser in the outcome of a
decision taints the decision with bias or a reasonable apprehension
of bias.
In some cases, a reasonable apprehension of bias may arise simply
from the close connection of a decision-maker with a person who may
be affected by the outcome of the decision. The relationship of the
parties may be so close and personal or the person interested in the
outcome so influential or dominant that a fair-minded person might
reasonably apprehend that the decision-maker might not make the
decision impartially.
However, whether or not the mechanics of the process are known, no
conclusion of apprehended bias by association can be drawn until the
court examines the nature of the association, the frequency of contact,
and the nature of the interest of the person associated, with the decisionmaker. It is erroneous to suppose that a decision is automatically
infected with an apprehension of bias because of the pecuniary or other
interest of a person associated with the decision-maker. Each case must
turn on its own facts and circumstances.
Was there bias in this case?
In the present case, the evidence showed that neither Mr. Miasi nor
Mr. Phillips influenced the Ministers decision. Because that is so, the
only way the first respondents can make out a case of reasonable
apprehension of bias is by relying on the principle of bias by association.
Again the peripheral role of the two officers is both relevant and decisive.
Mr. Creasy claimed that the Ministers decision gave rise to a
reasonable apprehension of bias because Mr. Phillips played a part in
preparing the Minute and his son was affected by the decision because
his son had a shareholding in AuDAX. But both the sons interest and
Mr. Phillips relationship with the Ministers decision are too far removed
to give rise to any apprehension of bias by reason of Mr. Phillips
association with the Minister. Mr. Phillips relationship with the Minister
was no more than that of Minister and public servant. He had no direct
pecuniary interest in the decision. It is true that he reviewed the draft
Minute and made amendments before Mr. Burton prepared the final
Minute. But that had little resemblance to the draft. It is also true that
some comments made by Mr. Phillips went into the Minute submitted to
the Minister. But the Minister knew nothing of the sons interest.
Put most favourably for Mr. Creasy, the question is whether a fairminded lay person, properly informed as to the nature of the process,
might reasonably apprehend that the Minister might not have made his

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decision impartially because Mr. Phillips was an adviser and his son had
a shareholding in a company that would benefit from the grant to Hot
Holdings. I do not think that any fair-minded person could think that the
Minister might be so irresponsible that he would allow this association
with Mr. Phillips to affect his decision. Moreover, in this case, the
evidence revealed the decision-making process. It is not a case where
an apprehension of bias might be increased by the combination of an
interested person being closely associated with the decision-maker or
involved in the decision-making process and the mechanics of the
decision-making process being unknown to the fair-minded observer.
Once the Ministers lack of knowledge of the sons shareholding is taken
into account, no fair-minded observer could possibly conclude that the
Minister might not have made his decision impartially.
The relationship between the Minister and Mr. Miasi was simply that of
Minister and public servant with Mr. Miasi playing no part in formulating
the contents of the Minute. Add to this, the fact that the Minister was
unaware of Mr. Miasis shareholding and it is impossible to find that any
fair-minded observer would reasonably apprehend bias on the Ministers
part in granting Hot Holdings application.

Kirby J (dissenting):
o Disqualification for pecuniary interest:
there was no separate principle of disqualification for pecuniary interest.
Such cases were to be treated by the application of the apprehension of
bias principle: at 357 [55].
o Disqualification for bias and ministerial decision-making:
In Jia I expressed the opinion, which I still hold, that it is quite wrong to
suggest that, because the decision-maker is a Minister, necessarily a
politician and an elected official, he or she is exempt from the
requirements of natural justice, or enjoys an immunity from
disqualification for imputed bias This must be so because, in every
case, the minister must be able, if challenged, to demonstrate that he or
she has exercised the statutory powers in question "by reference only to
considerations that are relevant to the grant of power and compatibly
with the exercise of that power
o Consequences of biased decisions:
To the extent that a minister departs from the source of the power the
law will have been breached. The link to the source of power will be
severed. The decision will be invalid. A party with an interest will be
entitled to judicial relief from the purported decision. That party will be
able to secure an order quashing the decision and requiring that it be
made again, lawfully.
o Application:
Although the separate argument that the Minister had merely rubber
stamped the recommendation from his Department was not pursued in
this Court, it remains the fact that the departmental recommendation
contained in the officers minute was incontestably the recorded basis of
the Ministers decision. Most members of the Australian public would, I
think, assume that that decision was, at the least, profoundly influenced
by the departmental minute and the recommendation expressed in it.
One of the officials, who participated in the deliberations leading up to
the recommendation, failed to disclose the pecuniary interest of his son
who stood to gain from the recommendation.
Once it is also established that a crucial part of the minute was actually
drafted by another departmental officer with an undisclosed personal

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financial interest in the recommendation being made, the conclusion


reached unanimously by the Full Court was open. I see no error in that
conclusion. On the contrary, I believe that it is the conclusion that the
impartial observer in the Australian public, with knowledge of the
contextual matters that I have mentioned, would similarly draw.
Whether or not there is an appearance of bias should be capable of
determination in advance. Such an approach gives the decision-maker
the opportunity to rectify any such impression. Test it this way. If
Mr Miasi and Mr Phillips had disclosed their respective interest and
association to the Minister, who can doubt that the Minister in such a
sensitive area of decision-making would have said and rightly said
Well you had better have nothing to do with this matter. And please
record that you informed me and that I gave you that instruction.
In such a long drawn out process of litigation, the result that I favour
would be disappointing to the appellant which is individually innocent
of any wrong doing. It would also be costly to the parties. In the final
outcome, it might produce no ultimate change in the final decision. But,
at least then, the decision would be lawful. It would be made without
disqualifying flaw. Moreover, an important principle for the integrity of
public administration would have been reinforced that has prophylactic
utility, symbolic importance and great economic value. Confirming the
Ministers decision, in my view, diminishes that principle Financial
probity, and the absence of undeclared pecuniary self-interest, or
undeclared but known interests of close family members, are not the
only attributes of sound public administration. They lie at its heart. This
Court should reinforce them. It should not sanction practices that have a
tendency to undermine their strict observance.

Decision
No, the decision-makers interests do not give rise to a reasonable apprehension of bias

Contextual factors

The content of obligations relating to procedural fairness, including the rule against bias, varies
according to the context in which they are applied (Kioa). In particular, the strictness of the
requirement that decision- makers exercise their powers impartially varies according to the
identity of that decision-maker. This is because the standards applied by a fair-minded observer
vary according to the character of the decision maker (Ebner).
The bias rule is applied most strictly to the judiciary. Tribunals, departments and Ministers are
treated far more leniently. They are not held to such high standards as judges:

Courts (judges): strictest (Kartinyeri)


Tribunals (members): less strict, but still quasi-judicial (Epeabaka)
Government departments: relatively lenient
Ministers: very lax
o It would be wrong to apply to a [Minister] the standards of detachment which
apply to judicial officers or jurors (Jia per Gleeson CJ and Gummow J)

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Practical considerations

Alleging bias against a decision-maker (especially a judge) is a serious claim with far-reaching
consequences. The decision-maker faces embarrassment (though this is lessened as a result of
the public perception test). The lawyer making the allegation also faces various professional
and psychological inhibitions. Professional comity is a factor. The consequences of a failed
allegation are also significant (at the least, judicial distrust or, at worst, professional misconduct).
The consequences are multiplied when dealing with allegations of actual (as compared with
ostensible) bias. Actual bias requires proof as to the mind of the decision-maker rather than the
fair-minded observer. A court will only find actual bias if satisfied that the decision-maker
approached an issue with a closed mind. Allegations of this nature must be made with great
delicacy. They are dealt with by judges with even greater circumlocution.
Judges are honour bound to disqualify themselves from a case if they know of circumstances
clearly creating a reasonable apprehension of bias. This duty is not enforceable, however. In
relation to more ambiguous sources of bias or more tenuous connections, the judge is expected
to voluntarily disclose the matter and seek waiver to continue.
Note also that the bias rule is not designed to deal with complaints of systemic bias.

Exceptions
(a)

Waiver

The bias rule may be waived expressly or by implication. Implied waiver usually arises from a
failure to make any timely objection upon learning of facts that give rise to apprehended bias. In
this way, a party cannot keep bias up their sleave as an appeal ground. However, as Callinan J
noted in Johnson v Johnson, there are many difficulties associated with objecting to perceived
bias during a trial:

It may anger the judge, and so lead to actual (if concealed) bias
Bias is often the cumulative result of individual matters the full impact of which may not
be visible until after judgment
A party may not want to raise the issue for fear of embarrassment until they knew it was
absolutely necessary
Judges may not be able to easily respond to a claim of bias during the course of
proceedings

(b)

Necessity

Where disqualifying a biased decision-maker would prevent a proceeding from being heard
according to statutory or other practical requirements, that decision-maker, by necessity, may
hear the case:
The rule of necessity permits a member of a Court [or tribunal] who has some interest in
the subject matter of the litigation [or dispute] to sit in a case when no judge [or tribunal
member] without such an interest is available to sit
Laws v Australian Broadcasting Tribunal (Mason CJ and Brennan J).
Although, on the facts, no bias was apparent, in Laws, if bias had been present, necessity would
prevail over and displace the rules of natural justice in order to give effect to the statutory
intention that the tribunal perform its assigned functions (at 889). In cases where the trial is

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excessively long, central witnesses have died or disappeared, or decision was reserved for some
time, the Court may also give effect to necessity (Ebner per Gleeson CJ, McHugh, Gummow,
Hayne and Callinan JJ).

Laws v Australian Broadcasting Tribunal (1990) HCA:


Facts

Issue

Mr Laws, a radio announcer, made comments critical of Aboriginal welfare payments


during a talkback radio programme on the 2GB radio station
As a result of which, complaints were lodged with the Australian Broadcasting Tribunal
(ABT)
The ABT dealt with the radio station but not directly with Laws
Three members announced he had breached the standard three days before the inquiry
was announced (only an inquiry decision could determine guilt)
o One Tribunal member commented on the case in a way that seemed to conclude
that he was guilty
o Three had issued a statement saying that Laws had breached the standard by
ABT before the inquiry into his behaviour was announced
Laws accuses all the members of the Tribunal of bias
o The other members were said to be biased because they participated in the
decision to defend defamation and review proceedings brought by Laws

Is there a reasonable apprehension of bias?


Does entering the defence create such an apprehension?
If so, is the Tribunal nevertheless required to decide the outcome of the dispute?

Reasoning
Mason CJ and Brennan J:
o Entering the defence was not sufficient evidence of actual bias and no other
evidence existed
o Is apprehended bias a matter of fact or law?
Fact
The test is legal, but its application is factual
o Against which members of the Tribunal was there apprehended bias?
The members who prematurely announced that Laws breached the
standards
o What hypothetical persons position should courts take when determining
whether there is apprehended bias?
The fair-minded observer to whom is attributed the knowledge of the
actual circumstances of the case
Dont assume that they have legal knowledge, but assume that
understand that defenses to the Tribunal are not assertions of belief or
admissions
Therefore asserting a defence is not a prejudgment of the issues
A corporate decision to defend does not implicate individuals (especially
since the government would cover any costs incurred as a result or in
determination of a defamation trial)
So there is no material interest direct or indirect in the outcome of the
inquiry
o What role does necessity play?
Even if there was bias, the tribunal still has a statutory function to
perform

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They could not perform this function if every Tribunal member was
disqualified from hearing
The statutory function trumps procedural fairness when both cannot be
accommodated

Deane J (dissenting)
o Considers the legislative context:
There will be an on-going relationship between the Tribunal members
and those they supervise
Members may form general views on certain issues, people,
broadcasters, &c, over time
o Why was this case different from the prejudgment that is part of the regulatory
context?
In this case, members prejudged the very issue involved in an inquiry
o Does prejudice by some Tribunal members normally taint all members?
No
Prejudgment is shielded by an institutional faade
However, all members may still be deemed biased where the
circumstances are such as to suggest that all members are biased
o Relevant factors:
The public statements made by the Director in her official capacity and
as a representative of the tribunal
The fact that three members (including the most senior) have prejudged
issues
A majority of the Tribunal presumably accepted their position by
agreeing to the inquiry
Even after a decision to challenge the inquiry was made, a senior official
defended the prejudgment
The Tribunal as a whole in the Court defended Ms Paramores
statements
The defence of matter in court; and
The refusal in court to pierce the institutional veil
o Relevant test:
An informed and fair-minded lay observer would have a reasonable
apprehension that the whole Tribunal is affected by disqualifying bias,
that is, a real likelihood that members would not bring an impartial and
unprejudiced mind to the determination
Qualifications: twofold
First, that there be no positive and substantial injustice; this is
because it cannot be presumed that the legislature intended that
Second, where the rule applies it does only to the extent that
necessity justifies
o Application and partial compromise:
The Tribunal was to be constituted only by people who were members
not personally involved in any of the impugned actions

Gaudron and McHugh JJ:


o Effect of the filing of the defences on the fair-minded observer:
While lawyers know that it does not constitute an admission, a fairminded observer would conclude in the context of the justifications given
that the Tribunal believed that the defences were true
o What is the fair-minded observer looking for to conclude that there is bias?
Having a conclusion about an issue involved in an inquiry is not enough
It must firmly establish that the decision-makers mind is so prejudiced in

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favour of a conclusion already formed that he or she will not alter that
conclusion irrespective of the evidence or arguments presented to her.
Even strong views (eg, about the desirability of equal pay) were
acceptable so long as they are provisional
How should the filing of defences therefore be understood in this context?
The Tribunal members did have a view, but nothing to say that they
would not fairly consider the evidence before them
This is different to a case in which a judge had a settled view of the facts
from an earlier conclusive determination
Necessity:
It is unnecessary to decide the issue
By the wayside: it is contrary to the principles of fairness to require a
person to submit to a biased decision-maker
There is much to be said for the view that a clear statutory intention will
be required before necessity has any operation

Decision
Pleading the defence was not sufficient evidence of actual or apprehended bias
Mason CJ and Brennan J: even if there was such evidence, the statutory function would
still need performance and so the Tribunal could remain constituted by necessity of
fulfilling that function

However, necessity does not apply to a decision made by a Minister whose statements led to a
reasonable apprehension of bias (Jia per Kirby J). In that case, the legislation did not require the
Minister to exercise power, so if bias was apparent another Minister could do so.

(c)

Statutory abrogation

Legislation can exclude or alter the bias rule. However, this is rarely done.

Social and Political Views

Social and political commitment to a cause being decided may also support a finding of
apprehended bias, especially where the decision-maker is ideologically affiliated with a party to
the proceeding. In such circumstances, merely being a member of the partys organisation may
be enough to warrant disqualification (Pinochet (No 2)).

R v Bow Street Magistrate; Ex parte Pinochet (No 2) (2000) HL:


Facts

Issue

Extradition proceedings are brought in England against General Pinochet, who is alleged
to have committed various human rights violation
Lord Hoffman is a member of the House of Lords, which hears the case
Amnesty International intervenes as amicus curiae
Hoffman LJ is an unpaid director of a charity wholly controlled by Amnesty International

Is there a reasonable apprehension of bias?

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Reasoning
Lord Hoffman, Amnesty International and the charity were separate legal entities, so his
Lordship is not formally a party to the proceeding and thus not a judge in his own cause
However, the connection is still an interest that leads to disqualification
Even mere non-directorial membership of AI could have required Lord Hoffmans
automatic disqualification
Note, however, that this proceeding was unique in that Amnesty was actually a party to
the proceedings (as amicus curiae)
Decision
Lord Hoffman steps aside

Gender Bias and Racism

Fortunately, instances of racism are relatively infrequent in adjudicatory proceedings. Many


would allege gender bias to underpin findings of fact (especially in criminal law) and the law more
generally; however, the bias rule is largely inapplicable to this kind of systemic bias. It has been
suggested, by Mason P, for example, that to accused the judicial system of being biased because
dominated by males would confuse impartiality with representativeness. However, the issue
arises, more broadly, of the significance of unexpressed assumptions and prejudices in
adjudication.
RDS v R highlights the issue of the extent to which judges are legitimately expected to identify
and counter their own preconceptions. There, a black, female judge acquitted a young black man
of assault, engaging in contextual judging to favour the accuseds testimony. Justice Ipp
cautions that the cause is a sharp reminder that judges should examine their own subconscious
attitudes and biases.
Judges and tribunal members may harbour actual bias without being aware of it. That this is so
has been the subject of increased judicial awareness:
A decision-maker may not be open to persuasion and, at the same time, not recognise
that limitation. Indeed, a characteristic of prejudice is the lack of recognition by the
holder. Decisions made upon assumptions or prejudgments concerning race or
gender have been made by many well-meaning judges, unaware of the assumptions or
preconceptions which, in fact, governed their decision-making. Thus, actual bias may
exist even if the decision-maker did not intend or did not know of their prejudice, or even
where the decision-maker, believes, and says, that they have not prejudged a case.4
Regardless of the prevalence of these forms of bias, which are to some extent inevitable, the
issue is not existential it is whether their presence gives rise to a reasonable apprehension of
bias on the part of the public. General assumptions about causality, phenomenology and morality
are unlikely to have this effect.

Sun v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, 5634 (North J).

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Relatives, Personal Friendships or Dislikes

Whether a relationship with one of the parties will disqualify an adjudicator depends on its
intensity. The Australian Chief Justices Guide to Judicial Conduct classifies them by degree:

Primary tier: Parents, children, siblings, spouses, domestic partners


Secondary tier: Grandparents, grandchildren, aunts, uncles, nephews and nieces, in-laws
Tertiary tier: Cousins, other relatives5

However, in all these circumstances, it is still essential to identify a connection between the
source of bias and the resulting decision. No such connection existed in Kaycliff v ABT.

Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) FCA:


Facts

Issue

The Tribunal Chairpersons husband had been critical of advice given by a solicitor to
one of the parties
The wife had not talked to her husband, and his views were his own

Could bias reasonably be apprehended?

Reasoning
Must be able to trace the bias through to the decision-maker
Here, no evidence of an opinion conduit from husband to wife
I tribunal should not be deflected by assertions as to its views by apparently credible third
parties
Treat spouses as fully autonomous unless evidence to the contrary
Decision
No apprehension of bias

Similarly, knowledge of the witnesses does not necessarily disqualify a judge, especially if the
area is regional (Trustees of Christian Brothers v Cardone).

Professional Involvement

Upon crossing the bar table, judges are not required to go into some form of monastic seclusion,
nor could they. They maintain various ties for former colleagues, professors, law schools, and
former clients or other parties. In much the same way, but to a greater extent, tribunal members
maintain other connections outside of their adjudicatory roles often in political or commercial
contexts. Thus, for reasons of practicality, not all forms of prior contact will lead to
disqualification. However, continuing involvement may lead to this result. In all cases, the basic
question to be asked is whether the involvement is such that a fair-minded observer might
reasonably apprehend bias as a result (Ebner).

Council of Chief Justices, Guide to Judicial Conduct (2003) 3.3.4.

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A judges past may make them unsuitable to judge; however, there is no clear line of separation
between past work and continuing duties. What is important is the connection between their
history and the publics apprehension of bias:
Every judge has a past. The question is whether something in that past would be
seen by the reasonable or fair-minded observer as having the potential to divert the judge
from deciding the case on its merits.6

Relevant factors when determining this issue include:

The nature and intensity of the previous relationship


The duration of the previous relationship
Whether the relationship is continuing or ceased
If it has ceased, how much time has elapsed
Whether the previous relationship relates to the current matter

A fair minded observer would not apprehend bias just because the judge, or his wife, engaged
the solicitor of one party to draft his will (Taylor v Lawrence). However, the result may well be
different had a will been amended by the solicitor on the night before judgment is handed down.
A judge cannot prosecute as well as adjudicate (R v Leckie; Ex parte Felman).
Ex-barristers are instantly able to overcome their ties to those who previously briefed them
(Westcoast Clothing Co Pty Ltd v Freehill Hollingdale and Page).
A prior relationship in the capacity of legal adviser does not generally disqualify the adviser from
hearing a case involving their former client, or to which he or she is a party. However, if the
advice given induced conduct which is the very subject of the present determination,
disqualification will occur (Re Polites; Ex parte Hoyts Corp Pty Ltd):
If the correctness or appropriateness of advice given to the client is a lve issue for
determination by the tribunal (or court), the erstwhile legal adviser should not sit. A
fortiori, if the advice has gone beyond an exposition of the law and advises the adoption
of a course of conduct to advance the clients interests, the erstwhile legal adviser could
not sit in a proceeding in which it is necessary to decide whether the course of conduct
taken by the client was legally effective or was wise, reasonable or appropriate.7

The issue of prior advice arose most recently in the High Court in Kartinyeris Case. There,
Callinan J stepped aside on the basis of previous professional ties to the defendant.

Kartinyeri (19xx) HCA:


Facts

6
7

Previous to his appointment to the High Court, Callinan QC had given advice to the
Commonwealth in relation to the Bridge Case (No 1), which is substantially relevant to
the present proceedings
Callinan J argues that he gave advice to the senate (and not the government), which was
not a party

Wentworth v Rogers [2002] NSWSC 1198, [24] (Barrett J).


Re Polites; Ex parte Hoyts Corp Pty ltd 91991) 173 CLR 78, 878.

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Callinan J also argues that his opinion was confined to legal issues, rather than the
present challenge, which was constitutional in nature
He later discovers that he had, in fact, given advice to the government, and steps aside
voluntarily

There are clear practical limitations to the application of the bias rule in these scenarios. At first
instance, the judge will decide themselves whether to step aside. While this may be appealed, it
is unlikely to be overturned except in the most questionable of circumstances, especially where a
superior court is concerned. In Kartinyeri, for example, if Callinan J had not stepped aside, there
would have been little that the parties could have done.

Improper Contact

Judges and magistrates of judicial bodies must not have any form of contact with parties,
witnesses or their advocates unless both parties are present. Any other contact will be improper
and give rise to a reasonable apprehension of bias (Re JRL; Ex parte CJL).

Re JRL; Ex parte CJL (1986) HCA:


Facts

Issue

A court counsellor, who was a potential witness in proceedings, initiates a meeting with a
Family Court judge
They confer privately, albeit briefly, in her chambers
The judge immediately disclosed to both parties what transpired and called for responses
to her strongly expressed views

Is there a reasonable apprehension of bias?

Reasoning
The meeting itself is sufficient to give rise to a reasonable apprehension of bias
Informing the other judges is insufficient to remove that apprehension
The judge should have distanced herself from the improper ex parte contact by
expressing disapproval and stating that she would put it out of mind
Mason J: the bias rule does not prevent a judge consulting with court personnel or with
other judges who have no interest in the matter
Decision
Yes, there is

A similar rule applies in relation to governmental officials. However, a lower degree of isolation is
required. For example, in Peko-Wallsend, the Court held that ex parte contacts with opposing
parties were permissible for administrative and Ministerial inquiries, providing that the other party
was afforded a chance to respond. R v Coburn concerns a public service officer.

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R v Coburn (19xx) HCA:


Facts

Issue

A police officer is disciplined following charges brought by another officer


The public services officer visited the relevant prison and conversed with the other officer
(bringing the charges) in the absence of the accused (analogous to a judge meeting with
the prosecutor without the accused being present)

Is there a reasonable apprehension of bias?

Reasoning
Muirhead J: nothing improper had been done
The statutory provisions governing disciplinary proceedings obviated the need for formal
hearings and prioritised speed of disposition; an appeal to a court-like tribunal was also
possible
However, the initial hearing was not meant to be court-like, so investigators are not under
the same obligations as judges
Decision
No reasonable apprehension of bias

Prejudgment

Pre-judgment is said to occur when a decision-maker approaches a live issue not having an open
mind to the merits of the case. If the decision maker has prejudged the issue, they come to the
decision with a closed mind. In doing so, they will not consider the issue on its merits, subverting
the purpose of review or judicial determination.
As a matter of procedural fairness, a judge should direct counsel towards live issues and allow
them equal opportunity to make arguments about them. However, the issue will arise when a
judges comments during the course of a trial give rise to an apprehension of prejudgement, and
hence bias.
1

Contextual approach

Judges are required to approach each case no the fewest possible preconceptions about it, the
parties or their witnesses. However, they are also deemed to possess a highly trained capacity
to forget things they should not know. Conversely, Ministers, departmental officials, and tribunal
members are required to exhibit a lesser degree of judicial detachment. Correspondingly, they
are also deemed to be less able to exercise their adjudicatory function in a disciplined manner.

Relevant factors

Prejudgment normally arises when a decision-maker expresses an opinion on how the case is
going to be decided. Factors for determining whether prejudgment has occurred include:

The stage of the trial at which the impugned remark was uttered
o Earlier more likely to evidence prejudgement: Kaycliff v ABT
o ANI v Spedley Securities (interlocutory, pre-trial proceedings)

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The manner in which it was expressed


o Indicative of closed-mindedness or willingness to enter into argument?
o The judge or member may simply have been directing counsel to a live issue

If the adverse finding occurred in previous proceedings, whether they are related to the
present matter
o Witness credibility: ANI v Spedley Securities
o Adverse finding against a current party or relevant witness

If the comment was made extra-judicially, its language and any associated issues

Extra-judicial comments

Judicial writings on various matters are helpful to barristers preparing arguments. Prolific judicial
writing also instils confidence in parties that the judge is knowledgeable (eg, Justice William
Gummows voluminous writings on equity).
The issue of at what point an opinion becomes bias thus seems rather a moot point. It is, to
some degree, inevitable. It doesnt necessarily prevent a judge hearing a case on its merits, and
may actually improve the ability of a decision-maker to grapple with complex legal and factual
environments. Thus, far from undermining the publics confidence in the judicial or tribunal
systems, extrajudicial comments are likely to enhance it.

Previous proceedings: witness credibility

Rulings in previous proceedings on similar facts or on the same witness credibility may give rise
to an apprehension of bias (ANI v Spedley Securities). It is arguable that, as a matter of
convenience when deciding related matters, some pre-judgments ought to be permissible.
Indeed, taken to its logical extreme, if two identical cases arise, the doctrine of precedent would
demand prejudgment, at least to the extent that the facts are the same.

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992)
NSW SC:
Facts

Issue

A judge hears interlocutory applications in connection with several interrelated cases


His Honour expressed concerns about the credibility of two men who were critical
witnesses in all of them
The proceedings were structured so that each party would be bound by the outcome of
any finding on an issue in which they had participated
It is alleged that in conceiving of the case in this manner, the judge had prejudged the
cases outcome

Are observations made at an interlocutory (pre-trial) stage grounds for preventing that
judge hearing the trial?

Reasoning
Would the judge necessarily go on not to decide the case on its merits?
o Arguably, having taken evidence and heard argument, no indication that the
judge will not consider relevant factors

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Important part of pre-trial proceedings: judge ought to express an opinion about


appropriateness for trial
o May not divert the decision-maker from assessing the claim on its merits
Majority: there is an appearance of prejudgment
o The argument of convenience for consolidating all the trials into one cannot be
upheld
o

Decision
Majority of NSWCA: should have stepped aside for the trial

Previous decisions: general

Prejudgment cannot normally arise from a previous, though related, proceeding unless it involved
an adverse finding against the credibility of a party or witness (see Re Media, Entertainment and
Arts Alliance; Ex parte Hoyts Corp Ltd).

Stage of hearing

Whether a comment evinces prejudgment will depend partly on the stage of the trial at which it
was made. An opening statement that expresses tentative views about one of the parties is
unlikely, when made by a tribunal member, and after reading the relevant claim documents, to
give rise to an apprehension of bias (Kaycliff v ABT).

Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) FCA:


Issue

Is there a reasonable apprehension of bias?

Reasoning
The stage at which a preliminary view is announced appears to us to be relevant. For
example, if at the end of the evidence, but before addresses, a judge expresses strong
suspicion about a witness veracity, one would hardly expect a claim of ostensible bias to
be made.
A judge may express an opinion and even form a tentative conclusion, so long as that
opinion is subject always to the possibility of their being changed by further evidence or
argument, as they go along
It can be useful for the parties to be given an insight into some or all of a courts or
tribunals developing opinions. Much depends on the personal style of the particular
judge or member
[W]e do not regard this court as having the function of minutely scrutinising expressions
used by members of administrative tribunals during the course of hearings before them
to find, if possible, some impropriety
Decision
No, no such apprehension

By contrast, in a case involving a judge trying a criminal case without a jury, to strongly object to
the calling of witnesses on the basis of their lack of objectivity evidences prejudgment (Vakauta v
Kelly). In such circumstances, the judge crosses an ill-defined line between permissible and

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impermissible comment (per Brennan, Deane and Gaudron JJ). Arguably, however, all the judge
did was voice privately helped preconceptions, which may well be present (and operative) in
many other cases.
[I]t is not enough that the decision-maker displayed irritation or impatience or even used
sarcasm. (Sun v Minister for immigration and Ethnic Affairs per Wilcox J). However, if there is
visible hostility between counsel and judge, as where argument becomes overly heated or
degenerate, the judge may be disqualified (R v Lars).
A tribunal officer who makes a public statement repeating the allegation of infringement, is
subsequently sued for defamation, and relies on the substantial truth of a certain imputation
defence, will not be disqualified for prejudgment (Laws v Australian Broadcasting Tribunal).
Although the allegation of infringement is the very matter to be decided by the tribunal, a
reasonable observer would appreciate that a defence pleading does not necessarily represent
that partys personal belief, views of admissions (Mason CJ and Brennan J). Gaudron and
McHugh JJ also held that no bias would be apprehended, for though a reasonable bystander
would believe that the tribunal believes in the veracity of their statement, they would also believe
that its members were amenable to persuasion and not in any way shown to be closed-minded.
Another option might have been for the tribunal to stay the defamation action and not file a
defence until the trial is complete (however, this may still give the impression that the tribunal will
make the statement true in order to exonerate themselves from liability). By far the most
compelling approach to this scenario is, however, to prevent a party who initiates the separate
legal proceedings from subsequently relying on statements made in connection with those
secondary proceedings to disqualify the defendants to those proceedings from deciding the case.

Application to Ministers and departmental officials

Certain experienced tribunal members are sometimes subjected to the same standards of
impartiality expected of judges (Bohills v Friedman). However, as was noted in Epeabaka, a
generally more lenient standard is applied. See further Jia.

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Exceeding Powers
A

Ultra Vires and Jurisdictional Error

Jurisdiction is the authority to decide.8 Jurisdictional error is thus where a body or tribunal makes
a decision without the authority to decide. It provides a ground for reviewing a decision made by
such a body or tribunal. Jurisdictional error was a ground of judicial review at common law.
Ultra vires, meaning beyond power,9 is an analogous ground of review applied in the context of
the executive branch of government. Historically, it differed from jurisdictional error in two
important ways.

Applicable Bodies

First, where jurisdictional error applies to courts, ultra vires applies to the exercise of
administrative power by officials and tribunals. Prior to the Anisminic Case, tribunals were said to
exercise quasi-judicial power and were hence subject sometimes to review only on the basis of
jurisdictional error (and not ultra vires).10 Today, however, tribunals are counted among members
of the executive branch and accordingly exercise administrative power.

Scope of Application

Second, ultra vires is broader than jurisdictional error as a ground of review. Jurisdictional error
solely concerns whether a court (or, historically, a quasi-judicial tribunal) had power to decide a
question. Such a body could still exercise the power improperly. However, ultra vires requires
that any grant of executive power is subject to the condition that it is exercised with propriety.
This gives rise to a broader concept of ultra vires various tests and duties designed to
determine whether the executive power to make a decision on a matter has been exercised
properly. They are grouped together under the general heading of broad ultra vires.
Thus, if a body is classified as judicial or quasi-judicial in nature, excess of power will only form a
ground of review to the extent that the body exceeded its jurisdiction. However, decisions by an
administrative body may be reviewed on the broader ultra vires ground, which encompasses not
only jurisdictional error but also the extended concepts of misuse of (administrative) power.
Naturally, this gave rise to lengthy arguments between litigants as to whether the relevant body
was of an administrative or judicial character.
Today, however, these distinctions [have] all but evaporated:11

8
9

10
11

All bodies within the executive arm of government are said to exercise administrative, not
judicial or quasi-judicial, power; this limits the importance of the distinction, if any, for the
purposes of administrative law (Anisminic);

Abebe v Commonwealth (1999) 197 CLR 510, 524 (Gleeson CJ and McHugh J).
Note that vires is, in its Latin form, already plural. Vis is the singular formal; however, both
translate as power.
Anisminic v Foreign Compensation Commission [1969] 2 AC 147.
Christopher Enright, Federal Administrative law (2001) 378.

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Error of law is now a viable ground of review at common law (R v Northumberland


Compensation Appeal Tribunal; Ex parte Shaw), meaning that decisions by judicial
bodies can today also be reviewed on many of the grounds covered by broad ultra vires;
Courts reviewing administrative decisions no longer attempt to classify a body as judicial
or administrative and use the phrases jurisdictional error and ultra vires
interchangeably (David Jones Finance & Investment v Commissioner of Taxation).

The collapse of the categories demarcating jurisdictional error and ultra vires has led some
commentators to speculate that the distinction, if any, is purely semantic.12

B
1

Common Law Avenues of Review

The High Courts Jurisdiction

Section 75(v) of the Constitution confers upon the High Court of Australia the power to grant
remedies of prohibition, mandamus and inunction against an officer of the Commonwealth.
Because the jurisdiction is not susceptible to statutory abrogation, it continues to provide a useful
avenue of review in circumstances where lower courts would be unable to hear another form of
statutory judicial review.
The High Courts jurisdiction under s 75(v) will ordinarily be invoked to correct a jurisdictional
error by an officer of the Commonwealth, manifested either as a want of jurisdiction, an excess of
jurisdiction or a failure to exercise jurisdiction.13 Whatever the resemblance of common law
jurisdictional error to broad ultra vires today, the constitutional avenue continues to remain open
to litigants appealing decisions by Commonwealth officers.

Jurisdictional Error

Jurisdictional error is theoretically a ground for reviewing any decision made pursuant to a
statutory instrument. If the ground is successfully pleaded, a writ of prohibition may be issued to
set aside the decision.
The precise meaning of jurisdictional error as a ground of appeal will vary with the context in
which a decision is made. In particular, the scope is typically narrower when considering
decisions made by a court than when considering decisions made by a statutory body, such as a
tribunal (Craig v South Australia):
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the
existence of jurisdiction or if it misapprehends or disregards the nature or limits of its
functions or powers in a case where it correctly recognises that jurisdiction does exist.
Such jurisdictional error can infect either a positive act or a refusal or failure to act.14
The result will be the issue of a writ of certiorari, which has the effect of quashing the infected
decision. Such a writ will be issued where the order is based upon a mistaken assumption or
denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.15
12
13

14

15

Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (1987) 11.
Robyn Creyke and John McMillan, Control of Government Action: Text Cases and Commentary (2005)
792.
Craig v South Australia (1995) 184 CLR 163, 177 (Brennan, Deane, Toohey, Gaudron and
McHugh JJ).
Ibid.

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Narrow Ultra Vires

Sections 5(1)(c) and 5(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)
provide for ultra vires as a ground on the basis of which a court may review an administrative
decision. The equivalent provisions in s 6(1) provide for review on the same ground of conduct
relating to such a decision:

Section 5 Applications for review of decisions:


(1) A person who is aggrieved by a decision to which this Act applies may apply for an
order of review on the following grounds:
(c)
(d)

that the person who purported to make the decision did not have jurisdiction
to make the decision;
that the decision was not authorized by the enactment in pursuance of which
it was purported to be made;

There are several aspects to narrow or simple ultra vires:

The Decision-Maker Must Be Authorised

If a decision-maker is not authorised to make the decision, their decision may be reviewed by
virtue of s 5(1)(c) of the AD(JR) Act or on the basis of common law narrow ultra vires. Whether
this is the case involves assessment of the qualifications and characteristics of the decisionmaker by reference to any statutory or other requirements:

Identity: if X is authorised to make a decision, but Y in fact makes it, then the decision
will be invalid;

Qualifications: to validly exercise power, a decision-maker must be qualified; that is,


they must meet any requirements of appointment and stature to which they are subject;

Appointment: relatedly, the decision-maker must have had power properly conferred
upon them by a valid process of formal appointment;

Disqualification: any conditions of disqualification must not have been met (eg, age,
bankruptcy); if they are met, the decision-maker is removed from office with the effect
that they no longer have authority to make decisions from that point;

Constitution of the body: the tribunal must be properly constituted


o Power must be exercised in the right division (eg, civil or criminal)
o The members must be present (eg, quorum met)

The Decision Must Be Authorised

The decision itself must also be authorised. A decision will only be authorised when it is made
pursuant to and in accordance with the enactment conferring authority. Thus, determinations

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falling outside the scope of the conferral of power will be unauthorised and, hence, nullified by
operation of ss 5(1)(d) and 6(1)(d) of the AD(JR) Act.
Determining whether a decision is authorised entails several elements:

The type of power conferred: if X is authorised to do P, X cannot do Q;


o Authority to prohibit pollution from open fires does not entail authority to prohibit
such fires themselves (Paul v Munday (1976) 9 ALR 245)
o Authority to operate trams does not entail authority to operate buses (London
County Council v Attorney-General [1902] AC 165)
o Authority to prosecute does not entail authority to make an appeal against
conviction (Bond v The Queen (2000) 169 ALR 607)
o Authority to hear a civil matter does not entail authority to try a criminal case
(Craig v South Australia (1995) 184 CLR 163, 177)

Over whom the power may be exercised: if the power can only be exercised in respect
of certain classes of people, then its recipient may not exercise it over people who fall
outside such classes;
o Authority for bona fide residents of premises to use them for certain purposes
does not entail authority for non-residents to use them for those purposes (Boyle
v Charge (1987) 73 ALR 446)

For what reasons the power may be invoked: if the power can only be brought to bear
in certain circumstances or on the satisfaction of particular preconditions, then the power
may not be exercised outside of those circumstances or in the absence of those
preconditions;
o If the power requires reasonable belief, suspicion or opinion (eg, If the Minister
has reason to believe), it may only be exercised when such a state of mind is
held or can reasonably be inferred to have been held;
o This requirement could be interpreted as purely requiring a subjective belief, as
setting a standard of proof (in which case review will involve re-examining
findings of fact), or as requiring the decision-maker to adduce reasonable
evidence to justify their belief16

Whether the power was exercised completely: paradoxically, an exercise of power to


an extent less than required goes beyond that power
o Substantive: where an issue requiring decision has not been decided
Example: where a decision-maker must make several findings, one or
more of which are not made
o Procedural: where a decision is not phrased with sufficient clarity or precision
(this is technically procedural ultra vires); this applies even if the power is highly
discretionary
Example: where a notice must specify some particular, which is not
specified

16

Primary Issues

Determining the authority of the decision-maker: whether he or she is qualified or the


body appropriately constituted;

Characterising the authorised power: whether the decision-maker is authorised to do


X or A;

See, eg, Liversidge v Anderson [1942] AC 207

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o

11 Grounds

This proceeds according to the terms of the statutory instrument conferring


power upon the decision-maker
In the absence of specific statutory intention, look to the nature and function of
the power (National Crime Authority v AI (1997) 145 ALR 126)

Characterising the exercised power: whether the power actually exercised is that
conferred or something else; and

Characterising the scope or other preconditions for exercise of the power, and
whether these were met.

Broad Ultra Vires

Sections 5(1)(e) and 5(2) AD(JR) Act formalise the specific forms of judicial review on the basis of
broad ultra vires. Section 6(1)(e) and 6(2) formalise the same in relation to conduct preceding a
decision:

Section 5 Applications for review of decisions:


(1) A person who is aggrieved by a decision to which this Act applies may apply for an
order of review on the following grounds:
(e)

that the making of the decision was an improper exercise of the power
conferred by the enactment in pursuance of which it was purported to be
made;

(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed
as including a reference to:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)

taking an irrelevant consideration into account in the exercise of a power;


failing to take a relevant consideration into account in the exercise of a
power;
an exercise of a power for a purpose other than a purpose for which the
power is conferred;
an exercise of a discretionary power in bad faith;
an exercise of a personal discretionary power at the direction or behest of
another person;
an exercise of a discretionary power in accordance with a rule or policy
without regard to the merits of the particular case;
an exercise of a power that is so unreasonable that no reasonable person
could have so exercised the power;
an exercise of a power in such a way that the result of the exercise of the
power is uncertain; and
any other exercise of a power in a way that constitutes abuse of the power.

Relevant and Irrelevant Considerations

Sections 5(2)(a) and 5(2)(b) afford grounds of review where the decision-maker neglected to
consider relevant factors, or formed his or her decision on the basis of irrelevant factors:

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Section 5 Applications for review of decisions:


(a)
(b)

taking an irrelevant consideration into account in the exercise of a power;


failing to take a relevant consideration into account in the exercise of a power;

Statutes can expressly state relevant considerations. More commonly, however, statutes are
silent about what is relevant. To construe the relevant considerations depends on analysis of
statute as a whole

Peko-Wallsend (200x) Court:


Facts

Another aboriginal land rights claim under the Aboriginal Land Rights Act
o The Aboriginal Land Commissioner was required under the Act to write a report
about the claim, taking into account several expressed factors
o The report is then to be provided to the Minister in charge for determination
o However, the statute does not set out what considerations the Minister should
take into account when exercising his power to determine the claim
Peko-Wallsend is a mining company; it holds licences allowing it to search for and mine
uranium on land that is the subject of a claim
o It makes submissions to the effect that granting the claim would have a
detrimental impact on its operations
o The Land commissioner recommends for the claim over land to be granted on
which Peko-Wallsend, among several other companies, are mining uranium
o The Minister grants the claim
Peko-Wallsend, using the Freedom of Information Act, secures a memorandum
demonstrating that the Minister failed to take into account its submissions as to the effect
that granting the claim would have on their business
It argues that the Minister failed to take into account a relevant consideration and that the
decision to grant the claim should be quashed as a result

Issues
Are the submissions of Peko-Wallsend a relevant consideration which the Minister failed
to take into account?
Can discretionary relief be granted?
Reasoning
Mason J:
o Review will only be successful if the Minister fails to take into account a
consideration which he is obliged to consider
The ground will only be made out if a decision-maker fails to take into
account a consideration he is bound to take into account in making that
decision
o The statute must insist on its incorporation; general notions of relevance arent
relevant
Whether a factor is a necessary consideration is a matter of statutory
construction: may be express or implied
Express provisions can be either exhaustive or inclusive
Implied provisions from the subject matter, scope and purpose of the
statute

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Factors which a decision-maker is bound to consider is a matter of


statutory construction by reference to express provisions (exhaustive or
inclusive) or implication arising from subject matter, scope and purpose
of Act
If the provisions confer a broad discretion, then it will be much harder to make
out this ground of review
Unconfined discretion makes it more difficult to review such a decision
by a Minister
Failure to take into account a consideration does not of itself justify setting aside
of decision
The factor must have materially affected the decision
Whether the ground succeeds is not normally about the weight which a
factor should have been accorded
The fact that a decision-maker didnt take account of a consideration as
much as the aggrieved party would like goes towards unreasonableness,
not a failure to consider relevant factors

Decision
On the facts, the statute does not set out factors which a Minister must take into account;
however, it does specify factors which the Land Commissioner must consider
o The Court conducts a consideration of the subject matter, scope and purpose of
the Act
o It concludes that the process in which reports are made gives rise to an implied
obligation on the Minister to take into account the same considerations that the
Land Commissioner is required to consider
One of the relevant factors is detriment to the interests of affected parties
The Minister failed to take into account this relevant factor by not accounting for PekoWallsends submissions
The decision is remitted to the Minister to be remade in accordance with law

As it happened, the Minister took into account the submissions of Peko-Wallsend, but reached
the same conclusion, granting the claim again.

Acting for an Improper Purpose

Discretionary administrative powers are conferred to achieve specific purposes. These purposes
are contained in the authorising legislation, whether stated expressly or otherwise inferred. The
exercise of power for a purpose other than that for which it is granted is ultra vires, and therefore
reviewable under s 5(2)(c) of the AD(JR) Act:

Section 5 Applications for review of decisions:


(c)

an exercise of a power for a purpose other than a purpose for which the power is
conferred;

Improper purpose means any purpose not contemplated by the statute. Purpose can be
expressed in or implied by statutory provisions. If implied, the implication must occur within the
four corners of the statute. In determining the nature and scope of a purpose, courts will examine
the legislation as a whole.

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Order or enquiry:
1

Statutory purpose
For what purpose is the power conferred?
(i)
(ii)
(iii)

Administrative purpose
For what purpose was the power exercised?
(i)

Look at the statutory provisions


Are objects and purposes express?
If not, can they be implied by interpreting the subject matter and
language of the statute?

What were the motivations of the decision-maker or the person on


whose authority or advice the decision was made?

Other than
Is there a discrepancy between 1 and 2?

The requirement that power be exercised only for proper purposes reflects the public nature of
administrative power. Such powers must only be used for the public purposes for which they are
conferred, not for private purposes or for illegitimate public purposes.17
Prior to R v Toohey, the Crown and its representatives were immune from judicial review.
However, by this stage, the historical bases on which Crown immunity was based were no longer
tenable. As such, the High Court decided that review is possible of decisions made either by the
Crown or their representative in their capacity as statutory, though not prerogative, decisionmaker (R v Toohey). If the purpose for which the decision was made is invalid, the decision is
ultra vires.

R v Toohey (Aboriginal Land Commissioner) (1981) HCA:


Facts

17

A claim is made to the Kenbi (Cox Peninsula) region pursuant to the Aboriginal Land
Rights (Northern Territory) Act 1976 (Cth)
The Act allows claims over unalienated Crown land, but such land must not form part of
a town
Before the Aboriginal group can make a claim to the Peninsula, the Northern Territory
Administrator (a position similar to governor) makes a regulation declaring that land as
land within the town of Darwin
o This had the effect of substantially increasing the towns area; the land was also
geographically separated from the city proper
The Aboriginal Land Commissioner (Toohey J) found that the land was unable to be
claimed due to the regulation, and refused to consider whether it was ultra vires being
made for improper purposes or in bad faith
o He refused on the basis that actions of the Crown are not subject to judicial
review (ie, he did not have jurisdiction)
A writ of certiorari to quash that decision is sought on the grounds that the Administrator
is a representative of the Crown

Roger Douglas, Douglas and Jones Administrative Law (4th ed, 2002) 520.

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The Council argues that the regulation was made for the purpose of defeating
the groups land claim, an improper purpose

Issues
First, is the Northern Territory Administrator a representative of the Crown amenable to
judicial review?
If yes, has he acted for an improper purpose such that certiorari should be granted?
Reasoning
The Administrator is a representative of the Crown, except in the exercise of its
prerogative powers
o Stephen J:
A Minister cannot in his discretion set aside for his period as Minister
the obvious intention of Parliament; he must rather use his discretion to
promote Parliaments intention
Parliament does not confer powers upon a member of the executive in
gross, devoid of purposes or criteria, express or implied, by reference to
which they are intended to be exercised
Unless Parliamentary intention indicates otherwise, courts can examine
whether the exercise of power is within the scope of the statutory grant
by reference to the purposes for which it was made
This is so regardless of whether the party exercising power is a
representative of the Crown, a Minister or some other body or person
o Hence, power must not be exercised for improper purposes: a statutory power
conferred upon authorities subordinate to the Crown may be exercised only for
the purposes for which it is conferred
The Crown is simply acting on the advice of a Minister, or their delegate,
in a formal capacity
Because Ministers are subject to judicial review, so should the Crown
o The Land Council should hear the challenge
o Precisely what the purposes of the power are is a matter of statutory construction
o But note Mason J:
Agrees that statutory discretions of the Crown are subject to review
However, the exercise by the Crown of its prerogative powers cannot be
impugned: prerogative powers are immune from attack for mala fides
Courts will readily review the exercise of statutory discretion, but are
reluctant to review equivalent exercises of prerogative powers
This is because:
Statutory powers
o often affect the rights of citizens;
o are often accompanied by a duty to exercise the
discretion one way or another;
o may be precisely limited in scope;
o may be conferred for a specific or an ascertainable
purpose;
o are ascertainable by reference to fixed criteria or
considerations, express or implied;
Whereas prerogative powers lack some or all of these
characteristics and are often, by reason of their very nature not
susceptible of judicial review
However, the historical basis of a Kings prerogative is no longer
present; to continue treating the Crown as immune in its exercise of such
powers is a legal fiction
[T]he foundations on which the legal fiction was built have crumbled

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The regulation was made for an improper purpose


o Stephen J:
It is for the Land Council to determine, on the basis of evidence, whether
or not the regulation was made within the scope of the grant of power

Decision
Stephen J: the Commissioners refusal to examine the decision is unjustifiable, so
mandamus should go; certiorari is also granted
Because the regulation was made for an improper purpose, it is not a valid exercise of
statutory power
The substantive issue was subsequently decided by Olney J.

R v Toohey (Town Planning Regulations) (1988) FC:


Issues
Was the regulation made for a purpose outside the statute?
Reasoning
Formulations from R v Toohey
o A purpose wholly alien to the statute (Stephen J)
o Extraneous to the statute (Mason J)
o For an ulterior purpose (placing the Pensinsula beyond the reach of a land
rights claim: Wilson J)

The relevant motivation is that of the responsible Minister for town planning, under whose
advice the Administrator was acting
o He thought that the Town Planning Act (NT) couldnt support the expansion of
Darwin
o He claims that the purpose of the regulation was town planning

However, there is a strong inference that the regulation was made to prevent any
further Aboriginal land claims being made to land in the region
Trying to defeat a land claim is not a purpose contemplated by the Town Planning Act

Decision
The regulation was made for an improper (extraneous) purpose

Because of subsequent appeals, mala fides changes to evidentiary rules in the Northern
Territory, the death of a claimant, subsequent procedural hurdles, and various delays in hearing
the redeterminations at Land Councils and in appeal courts, the claimant Aboriginal group was
not successful in obtaining a portion of the Peninsula until late 1999!

Acting at the Behest of Others

Section 5(2)(e) includes within the scope of ultra vires review decisions made at the behest of
third parties:

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Section 5 Applications for review of decisions:


(e)

an exercise of a personal discretionary power at the direction or behest of another


person;

If a departmental head or subordinate automatically obeys the ad hoc policy of their responsible
Minister, they will have acted at the behest of another person (Ipec-Air). This is because they
effectively defer decision-making authority to that other person, which is ultra vires.

R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) HCA:


Facts

Issue

In 1964, Ipec-Air (Ipec) applies for a licence that will allow it to expand its domestic
Australian air routes to carry air freight between cities
It applies under the relevant Customs legislation to import the necessary aircraft
The DirectorGeneral has a discretion not to grant permission to fly the new routes;
however, he can only refuse to issue a licence if the applicant cannot establish that it will
comply with safety provisions (which Ipec could so establish)
Various correspondence takes place; the DirectorGeneral subsequently refuses to grant
permission
DirectorGeneral had taken into account the governments two airline policy in refusing
the licence
Ipec challenges the decisions (refusal to issue the charter licence and of permission to
import aircraft)
Ipec argues that because they implemented the required safety guidelines, there was no
basis on which permission could be refused

Can an order of mandamus be made, setting aside the decision?

Reasoning
The statute only provided for refusal in the event that safety requirements were not met
o The Court accepts this argument

Was the government policy an irrelevant consideration?


o No, government policy is a relevant factor unless the intention of the statute
indicates otherwise
o The fact that a licence can only be refused on particular grounds does not
prohibit an administrative decision-maker having regard to the Ministers view or
applicable government policy
o [Arguably, if a decision-maker fails to take into account government policy they
fail to take into account a relevant consideration]

How should it be taken into account?


o Ipec argues that the DirectorGeneral was not exercising its discretion and
instead simply implementing government policy
o Court: if this was the case, the decision would be set aside
o It would be ultra vires for an administrative decision-maker to act solely on the
basis of the views or policy of a third party

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Majority:
o However, as a matter of fact, the DirectorGeneral still used his independent
judgement and not solely on the basis of government policy
o The DirectorGeneral acted independently from and not on the behest of the
government
o He simply considered the relevant government policy

Minority (Kitto and Menzies JJ):


o As a matter of fact, policy was here the sole basis for the DirectorGenerals
decision
o Kitto J: he automatically obeyed an ad hoc pronouncement from the government,
effectively deferring decision-making to the Minister
o It would have been different he the DirectorGeneral had arrived at a decision of
his own after taking account of some matter of general government policy

Decision
Mandamus granted with respect to the charter licence application but refused with
respect to the import permission

Ipec-Air illustrates the difficulty of determining, in the absence of specific references in its
reasons, the grounds upon which a decision is made and by what factors it is influenced.

Applying Inflexible Rules Without Regard to Merit

Section 5(2)(f) of the AD(JR) Act provides for review of decisions made without regard to the
merits of the case:

Section 5 Applications for review of decisions:


(f)

an exercise of a discretionary power in accordance with a rule or policy without regard


to the merits of the particular case;

Such decisions are conventionally made when decision-makers strictly follow inflexible policy or
other rules. A policy will be unlawful when it is inconsistent with the terms of the statute
conferring power upon the decision-maker (Green v Daniels per Stephen J).

Green v Daniels (1977) HCA:


Facts

The Social Security Act 2000 (Cth) sets out a series of statutory criteria for determining
whether a person is unemployed:
o They must be capable and willing to undertake suitable work
o They must have taken reasonable steps to find work
The Department of Social Security also applies a policy of refusing unemployment
benefits to any school-leavers until the start of the following semester
o This is clearly to prevent year 11 students from receiving the allowance other
their summer holidays, but then returning to school the following semester

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Karen Green, a school-leaver, applies for and is refused benefits


However, the Social Security Act said she was entitled to benefits if she had taken
reasonable steps to look for work, which she claims to have taken

Issues
Is the policy no more than an optional instruction to the department how to determine
whether the required statutory criteria are met?
Or is it a binding requirement?
If the latter, is the policy lawful?
Reasoning
Stephen J:
o It is permissible for government policy to guide the application of legislation
o However, if government policy is inconsistent with legislative criteria it will be
unlawful
o In this case, the criteria in s 107(c)(i) and (iii) provided for certain definitions of
being unemployed and taking reasonable steps to obtain such work
o However, the policy had the effect of superimpos[ing] upon the statutory criteria
a requirement which effectively rendered the statutory criteria inoperative during
the summer holidays
o The policy is therefore inconsistent with the statute and unlawful
Lawful for the Department to have policies (eg, factors involved in determining
reasonable steps)
However, policy must not be inconsistent with the statutory criteria (such policies would
be unlawful and impermissible)
Not reasonable, not consistent

Decision
Stephen J: remits to the Department to make the decision in accordance with law
o Director-General advised Parliament to change the law
o Green was found not to be qualified

The result in Green v Daniels highlights one of the limitations inherent in administrative law and,
in particular, judicial review mechanisms. Even if a court holds that a decision was unlawful and
grants mandamus, the matter is often simply returned to the original decision-maker, who is then
entrusted with remaking the decision according to law. In practice, however, this usually means
making the same decision for a different, or more precisely expressed reason. Most
administrators (and their departments) are none too happy to have their decisions brought into
question by a court, and for this reason harbour resentment towards applicants. It is thus
unsurprising that the substantive aspects of an administrative decision rarely undergo reversal as
a result of judicial review.

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Unreasonableness

Unreasonableness is a ground of review at both common law and under the AD(JR) Act.
Section 5(2)(g) of the Act provides for review in cases where:

Section 5 Applications for review of decisions:


(g)

an exercise of a power that is so unreasonable that no reasonable person could


have so exercised the power;

Unreasonable here refers broadly to irrationality. At common law, unreasonable means a


general description of the things that must not be done.18 This test of unreasonableness is also
known as Wednesbury unreasonableness, after the case in which it was articulated.
Unreasonableness in this sense includes taking into consideration extraneous matters (see now
above Part V(D)(1)), as well as inflexible application of policy (see now above Part V(D)(4)).
It has been suggested that the Wednesbury formulation is redundant, not adding anything to the
basic irrationality understanding of unreasonableness. According to Dixon CJ, it is instead
purely a way to infer the presence of other errors.19 In this way, it operates as a kind of safety
net, catching errors of law unimpeachable by other grounds.20 This means that there is
considerable overlap other grounds of broad ultra vires; in particular, what are now ss 5(1)(j) and
5(2)(j).
Courts are hesitant to examine unreasonableness too broadly. This is the ground that comes
closest to trespassing into the realm of merits review. As Mason J noted in Peko-Wallsend, the
limited role of courts in evaluating the merits of a decision should be emphasised, especially
where a challenge is made to the reasonableness of a decision or weighting. For this reason,
challenges to reasonableness are rarely successful.
This ground excludes absurd findings of fact (assumptions or determinations without any
evidence to support them): S20.

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant


S20/2002 (2003) HCA:
Facts

Issue

An asylum seeker is denied a temporary protection visa, and so seeks to challenge the
immigration tribunals determinative finding of fact as being unreasonable, irrational or
illogical

Is the decision irrational or illogical?

Reasoning
18

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] KB 223, 22930 (Lord
Greene MR).
19
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, 360.
20
See Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action
(2004) 334348.

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Gleeson CJ:
o Unreasonableness is a protean concept
o It is necessary to identify and characterise the suggested error, and relate it to
the legal rubric under which a decision is challenged

McHugh and Gummow JJ:


o The Migration Act 1958 (Cth) intended to exclude Wednesbury
unreasonableness
o In any case, the scope of Wednesbury unreasonableness is limited to
circumstances in which the decision-maker has discretion to determine an issue
not in relation to findings of fact or statutorily mandated conclusions
o There is therefore no overlap between Wednesbury unreasonableness and
challenges on the basis of irrationality or illogicality (which would result in
jurisdictional error because the decision would not be unauthorised)

Kirby J: agrees, but the scope might be broader in a constitutional context

Decision
Because there is no overlap between the grounds, the applicant could challenge the
decision in either the Federal Court or the High Court

Luckily for the High Court, S20 effectively discovered/vested the Federal Court with jurisdiction to
hear cases that could otherwise only have been heard by the High Court.
Unreasonableness is inescapably qualitative. Because the impugned decision must be
evaluated, it is tempting to confuse unreasonableness and merits review. However,
unreasonableness is a substantially narrower basis for review than would be applied in merits
review. The fact that unreasonableness challenges very rarely succeed support this distinction.
Paramatta City Council v Pestell provides an example of a review that was successful on this
basis.

Paramatta City Council v Pestell (200x) HCA:


Facts

Issue

Paramatta City Council is a local council in Sydneys suburbs


It has the power to levy owners of properties so as to fund the creation of works and
amenities
Before it does so, it must be satisfied that the works and amenities will be of special
benefit to the property owners being taxed
The Council decides to impose a levy in a predominantly industrial area, so as to
construct works of general amenities; there are pockets of residential properties
The council imposes the levy, but exempts the residential properties from payment
As a matter of fact, the works would be of special benefit to the residents
One of the commercial owners thought they were bearing a disproportionate share of the
levy, and brings an action challenging the decision

Was there no reasonable basis on which to exempt the residents from payment of the
levy?

Decision

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Yes, the was no reasonable basis and the decision should be quashed

Paramatta City Council is an exceptional result. Most decisions will not be Wednesdbury
unreasonable: if, for example, a statute sanctions racial discrimination, a decision of that nature
made pursuant to it will not be reviewable on the basis of unreasonableness, assuming it is in
accordance with the statutory provisions.

General Themes

The statute is critical to construing broad ultra vires grounds of review. The following method of
enquiry may prove useful:
1

What is the purported error?

Why is this impermissible in the context of the statutory provisions?

Not examinable:

Pre in-class test materials


Essay: external affairs and corporations power
Online exercise: FOI and Ombudsman

Hypothetical

Can Hitenmiss challenge the withdrawal of permission to export abalone?

Can Hitenmiss challenge the governments report?

Can Hitenmiss challenge the regulations under the AD(JR) Act?

Decision to which this Act applies (s 5): s 3


o Decision (Bond)
Withdrawal of a licence: yes
Making regulations: yes, has finality, effect of law
Report?
o Of an administrative character ([???])
Cf legislative: regulations cannot be challenged, of a legislative character
Regulations not reviewable
Withdrawal of a licence: yes
Report?
o Pursuant to an enactment
Licence: yes
Report?
o No exceptions apply
Aggrieved person: Hitenmiss
Grounds
o Procedural fairness: s 5(1)(b)
Does it apply?

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If yes, what does it require?


Hearing rule
Bias rule
o Jurisdiction: s 5(1)(c)
Depends on the details of the administrative scheme
o Authorisation: s 5(1)(d)
Assume valid appointment, qualifications
o Improper exercise: s 5(1)(e)
Irrelevant consideration? s 5(2)(a), (b)
Notoriously unreliable: irrelevant
Didnt consider references: relevant
Ulterior purpose: s 5(2)(c)
To make the DPI look more stringent
Acting at the behest of another: s 5(1)(e)
Following the governments report
Independent decision likely, unlike Kitto J in Green
Unreasonableness: s 5(1)(g)
Unlikely to succeed: some evidence of bad character
Remedies

How can Hitenmiss secure reasons for the decision not to renew its licence?

No general common law right


AD(JR) Act s 13: need to satisfy threshold requirements, a confined entitlement
Other mechanisms: AAT

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